People v. Letteer

• Citation: 103 Cal.App.4th 1308,127 Cal.Rptr.2d 723
• Decision Date: 27 November 2002
• Docket Number: No. H021920.,H021920.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mark Duane LETTEER, Defendant and Appellant.

127 Cal.Rptr.2d 723

103 Cal.App.4th 1308

The PEOPLE, Plaintiff and Respondent, v. Mark Duane LETTEER, Defendant and Appellant.

No. H021920.

Court of Appeal, Sixth District.

November 27, 2002.

Brian A. Pori, San Francisco, Rothstein, Donatelli, Hughes et al. (Under appointment by the Court of Appeal), Attorney for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Deputy Attorney General, William Kuimelis, Deputy Attorney General, Attorneys for Plaintiff and Respondent.

WUNDERLICH, J.

I. Statement of the Case

In 1997, defendant Mark Duane Letteer pleaded guilty to possession and being under the influence of methamphetamine and admitted having three prior felony convictions that qualified as strikes under the "Three Strikes" law. (Health & Saf.Code, §§ 11377, subd. (a); 11550, subd. (a); Pen. Code, §§ 667, subds. (b)-(i); 1170.12.) At sentencing, the Honorable John T. Ball dismissed two of defendant's strikes in furtherance of justice (see Pen.Code, § 1385; People v. Superior Court (Romero) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628) and imposed a one-strike term of 32 months for possession and a concurrent 90-day jail term for being under the influence. The District Attorney immediately challenged the dismissal of two strikes by seeking a writ of mandate.

On May 15, 2000, this court filed an opinion in which we concluded that Judge Ball had abused his discretion in dismissing the two strikes. (People v. Superior Court (Letteer) (May 15, 2000, H020324) [nonpub. opn.].)¹ We issued a peremptory writ of mandate, directing the superior court to vacate the dismissal order, reinstate the two strikes, and resentence defendant as a person with three strike prior convictions.

On remand, the prosecutor disqualified Judge Ball from resentencing defendant by filing a peremptory challenge under Code of Civil Procedure, section 170.6, subdivision (2), and, over defendant's objection, resentencing proceeded before the Honorable Paul T. Teilh.² Judge Teilh denied defendant's request for a formal sentencing hearing, reinstated the previously dismissed strikes, and imposed a three-strike term of 25 years to life for possession of methamphetamine and a concurrent six-month jail term for being under the influence.

On appeal from the judgment, defendant claims, among other things, that sentencing by Judge Teilh violated the terms of the plea bargain. We agree, reverse the judgment, and remand the matter for further proceedings.

II. Violation of the Plea Bargain

Citing People v. Arbuckle (1978) 22 Cal.Sd 749, 150 Cal.Rptr. 778, 587 P.2d 220 (Arbuckle), defendant contends that an implied term of the plea bargain entitled him to have Judge Ball resentence him, and therefore, resentencing by Judge Teilh violated the plea bargain and denied him due process of law. We agree.

In Arbuckle, the defendant entered a plea before a particular judge, but before the sentencing hearing, that judge was transferred to a different department. The defendant's request to have the case transferred was denied, and a different judge imposed sentence. (Arbuckle, supra, 22 Cal.3d at p. 757, 150 Cal.Rptr. 778, 587 P.2d 220.) In reversing the judgment, the California Supreme Court stated, "As a general principle ..., whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant's decision to enter a guilty plea. [Citations.]" (Id. at pp. 756-757, 150 Cal.Rptr. 778, 587 P.2d 220.) The court held that "[b]ecause the defendant has been denied that aspect of his plea bargain, the sentence imposed by another judge cannot be allowed to stand. [Citations.] The defendant is entitled to be sentenced by [the original judge], or if internal court administrative practices render that impossible, then in the alternative defendant should be permitted to withdraw his plea."³ (Id. at p. 757, 150 Cal. Rptr. 778, 587 P.2d 220, fn. omitted.)

The People claim that Arbuckle is inapplicable here because at the time defendant entered his plea, he did not reasonably expect Judge Ball to sentence him, and therefore, sentencing by Judge Ball did not become an implied term of the plea bargain. We disagree.

The People correctly note that Arbuckle rights arise only where the record affirmatively indicates that the defendant reasonably expected to be sentenced by the judge who took the plea. (In re Mark L. (1983) 34 Cal.3d 171, 177, 193 Cal.Rptr. 165, 666 P.2d 22; People v. Adams, supra, 224 Cal.App.3d at p. 1543, 274 Cal.Rptr. 629; People v. Horn (1989) 213 Cal.App.3d 701, 707, 261 Cal.Rptr. 814; People v. Serrato, supra, 201 Cal.App.3d at p. 764, 247 Cal.Rptr. 322; People v. Guerra (1988) 200 Cal.App.3d 1067, 1071-1072, 246 Cal.Rptr. 392; People v. Ruhl (1985) 168 Cal.App.3d 311, 315, 214 Cal.Rptr. 93; In re James H. (1985) 165 Cal.App.3d 911, 919-920, 212 Cal.Rptr. 61.) For example, in Arbuckle, the court found a reasonable expectation because the judge who took the plea repeatedly used the personal pronoun in referring to the future sentencing hearing. (Arbuckle, supra, 22 Cal.3d at p. 756, fn. 4, 150 Cal.Rptr. 778, 587 P.2d 220.) Similarly, in In re Mark L., the court found a reasonable expectation because the judicial officer interchangeably used the personal pronoun and "`the Court'" when referring to sentencing. (In re Mark L., supra, 34 Cal.3d at p. 177, 193 Cal.Rptr. 165, 666 P.2d 22.)

Here, in taking the plea, Judge Ball referred to the possible alternative sentences "the court" could impose. After accepting the plea, he stated, "All right. Then the Court will find that the defendant has freely and voluntarily waived his constitutional rights and entered a plea after having been advised of the consequences thereof." (Italics added.) He then referred the matter to the probation department, asking defense counsel if defendant waived time. Counsel waived time and asked if "the Court" would be available for sentencing during a particular week. Judge Ball said that he would be.

When Judge Ball and defense counsel said "the court," they were referring to Judge Ball. Moreover, in scheduling the sentencing hearing, Judge Ball indicated he would be the one to sentence defendant. Thus, the record affirmatively shows that defendant expected Judge Ball to sentence him. Indeed, Judge Ball did sentence him. At that time, he used "I" and "the court" interchangeably, and counsel referred to him as "the court."

Any possible ambiguity concerning defendant's expectation is dispelled by his conduct after entering his plea. He wrote Judge Ball a letter about the upcoming sentencing hearing, and in closing stated, "Your Honor, I am truely [sic ] frightened about all this. I haven't understood much of all that is happening or how it has become such a travesty. Your sheriff officers in your court room, as well as my attorney and Madam District Attorney have said you are a fair and just Judge. So I am placing my trust in you. Though your power terrifies me I believe what your Court officers have told me." Defendant's letter unmistakably reflects that he expected Judge Ball to sentence him. Moreover, later, after the prosecutor successfully removed Judge Ball, defendant expressly objected to sentencing by Judge Teilh, claiming a violation of his Arbuckle rights. (See People v. Horn, supra, 213 Cal.App.3d at p. 709, 261 Cal.Rptr. 814 [lack of objection to sentencing by different judge relevant in determining existence of Arbuckle rights].)⁴

The People further claim that even if defendant expected Judge Ball to sentence him, Arbuckle is still inapplicable. In support of this claim, the People cite People v. Dunn (1986) 176 Cal.App.3d 572, 222 Cal.Rptr. 273 (Dunn ). Again, we disagree.

In Dunn, the judge who took the plea retired before sentencing, and a different judge imposed sentence. On appeal, the court found Arbuckle inapplicable because the original judge's unavailability was due to "a matter clearly beyond the power of the court to control"—retirement—rather than an internal administrative problem or convenience of the court, as was the case in Arbuckle. (Dunn, supra, 176 Cal. App.3d at p. 575, 222 Cal.Rptr. 273.) In support of its holding, the court quoted People v. Watson (1982) 129 Cal.App.3d 5, 180 Cal.Rptr. 759, a case where the original judge died before sentencing. According to Watson, "Arbuckle and the cases applying it [citations] involve situations where the original judge was unavailable for sentencing due to internal administrative scheduling problems. Arbuckle speaks only of such situations and it is doubtful whether its mandate would apply when, as here, the judge is unavailable due to his death." (Watson, supra, 129 Cal. App.3d at p. 7, 180 Cal.Rptr. 759; Dunn, supra, 176 Cal.App.3d at p. 575, 222 Cal. Rptr. 273.)

Building on the Watson court's doubt, Dunn states that "a negotiated plea does not carry with it an implied promise that the judge accepting the plea will not resign, retire, expire or be removed from the bench pending imposition of sentence. The People appropriately bear the risk of a judge's unavailability due to matters within the control of the court, but no good reason appears why they should bear the risk that the judge before whom defendant plead[ed] is no longer vested with judicial power to pass sentence. To the implied term recognized by Arbuckle that the judge accepting the plea will impose sentence must be added an implied condition: if that judge then still actively exercises judicial power." (Dunn, supra, 176 Cal. App.3d at p. 575, 222 Cal.Rptr. 273; see also People v. Jackson (1987) 193 Cal. App.3d 393, ...